Law-Making Treaties: Form and Function in International Law

Catherine Brlmann (Amsterdam Center of International Law, University of Amsterdam)

When considering the situation in South West Africa, the International Court of Justice observed that the League of Nations mandate had characteristics similar t o law-making treaties , and defined the latter as concluded for the purpose of establishing new rules for the law of nations. 1 In the Loizidou case, the Europea n Court of Human Rights explicitly set apart the European Convention as a lawmaking treaty , attributing corresponding special competences to the Convention institutions. 2 The distinction between law-making treaties and contract treaties is a frequently used analytical tool in treaty practice and doctrine. At the same tim e, little trace of it is found in the positive law of treaties. This contribution briefly explores the concept of law-making treaties ( I); its place in the law of treaties ( II); and its value as a separate legal-analytical category ( III). This will lead to the concl usion that law-making treaties indeed suffer from a gap between form and function, but that it is not instrumental to cultivate the dichotomy between law-making and contractual treaties. The most important reason is that the treaty is construed as one single instrument and that, moreover, for now it is (perceived as) the prime instrument for the formal creation of international rules of any kind. It theref ore seems more fruitful to embrace the law of treaties as a procedural framework and to take it from there in finding strategies that leave room for a law-making function .

I. The Concept of Law-Making Treaties Law-making treaty is an awkward notion. For one thing, it is questionable whether treaties can create law at all.3 But regardless of how we define law to begin with , law-making has a received meaning in the context of treaties. It refers to the substance of the norms, which would be statutory rather than contractual. In the words of Sir Gerald Fitzmaurice: law-making treaties stipulate integral obligatio ns (that is, they have to be performed as such and in their entirety), and they est ablish a regime towards all the world rather than towards particular parties. 4 Such in contrast to the reciprocal or concessionary obligations of a contract treaty, which

provides for a mutual interchange of benefits between the parties, with rights an d obligations for each involving specific treatment at the hands of and towards ea ch of the others individually. 5 The integral character of the norm was for example what the International Court of Justice looked for when it considered whether a provi sion 1 Following Lauterpacht - see South West Africa cases, (Ethiopia v. South Africa ; Liberia v. South Africa), ICJ Reports 1966, at 266. 2 European Court of Human Rights, Case of Loizidou vs. Turkey (Preliminary Objec tions), Judgment of 23 March 1995, Series A no. 310 p. 25, 84. 3 See below, IV. 4 Second Report on the Law of Treaties by Sir Gerald Fitzmaurice, UN Doc. A/CN.4 /107, YILC 1957, Vol. II, at 54. 5 Third Report on the Law of Treaties by Sir Gerald Fitzmaurice, UN Doc. A/CN.4/ 115, YILC 1958, Vol. II, at 27, Art. 18, 2.

in the 1958 Convention on the Continental Shelf was likely to have assumed power of customary law: [i]t would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally normcreating character . 6 6 North Sea Continental Shelf cases (Germany / Denmark; Germany / Netherlands), 1969 ICJ Reports 3, 72, at 41-42; the passage also points to the practical complication t hat many treaties contain a mixture of law-making and contractual norms, which would make it more helpful to apply the notion to individual norms rather than to treaties as a who le. This aspect of terminological difficulty is left out of account. 7 Heinrich Triepel, Vlkerrecht und Landesrecht, 1899 - the basis for the binding force of the Gemeinwillen, Triepel himself admitted, had to be found in an extra-legal contex t. Cf. Alfred Verdross, Die Verfassung der Vlkerrechtsgemeinschaft, 1926, at 20 ( als Grundlage de s Vlkerrechts ); also Peter Kooijmans, The Doctrine of the Legal Equality of States, 1964, at 133, 134. 8 Triepel (Ibid., at 56): Denn hier ist die Wille aller Betheiligten vollkommen g leichen Inhalts; with regard to states in particular: declarations of similar will (gleichen Wille ns), not only geared to a common purpose (Zweck) but also to a common plan (Vorhaben). 9 The Vereinbarung figured already in the writings of e.g. Karl Bergbohm (cf. St aatsvertrge und Gesetze Als Quellon des Vlkerrechts, Leipzig, 1877, at 79). 10 In a formal sense it is noteworthy that the European Conference System develo ped a practice of fostering adoption and conclusion of international conventions; see e.g. Paul Reuter, Introduction to the Law of Treaties, Geneva, 1995, at 8, who remarks tha t it in practical terms often compares rather favourably with the League of Nations or the United Nations. 11 See e.g. Inis Claude, Swords into Ploughshares: The Problems and Progress of International Organization, 1971, 1-37. 12 Cf. Point I of the 1918 Fourteen Points Speech by President Woodrow Wilson: Op en covenants of peace, openly arrived at, after which there shall be no private int ernational understandings of any kind but diplomacy shall proceed always frankly and in the public view (Arthur S. Link et al. (eds.), The Papers of Woodrow Wilson, vol. 45 (1984), at 536). Meanwhile the treaty instrument (and arguably the treaty concept as such) is based on a contractual notion and hinges on the precepts of freedom of contract and consent as the basis of obligation - which is the reason for its historic succes s as a rule-making device in the international arena in the first place.

The idea of law-making treaties is, however, not new. Around the turn of the 19th century Triepel famously proposed the notion of the Gemeinwillen, a separat e, collective Will distinct from the sum of wills of individual states.7 Such will would logically be directed towards, in the words of Triepel, one single purpose and o ne single plan.8 Technically the Gemeinwillen would be embodied in an agreement (Vereinbarung), as opposed to a treaty (Vertrag). The latter would be the vehicle for a legal transaction (Rechtsgeschft), i.e. an agreement of a contractual nature.9 This distinction is based on the substance of agreements; formally there was no diffe rence between the Vereinbarung and the Vertrag. It is not a coincidence that the idea of a legal instrument stipulating general norms, embodying a collective will, became topical in the late 19th century when Europe was to some extent governed by laws agreed upon by the Great Powers,10 and when the first international organization s were created.11 The unprecedented scale of conflict at the beginning of the 20th century then strengthened the vision of rule of law and legal certainty. This influenced trea ty practice in two ways. It inspired the promotion of treaty publication12 - initia lly geared to what could be considered as the prototypal contract treaties: military

13 The first attempt to codify and develop the whole field of international law was made in the framework of the League, with the establishment in 1924 of the Committee of Expe rts for the Progressive Codification of International Law, which was to be composed so as to represent "the main forms of civilization and the principal legal systems of the world." Cf. th e ILC website (http://www.un.org/law/ilc/); on the 1930 Codification Conference, Shabtai Rosen ne, League of Nations Conference for the Codification of International Law, 1975. 14 13(1). The General Assembly shall initiate studies and make recommendations fo r the purpose of: a. encouraging the progressive development of international law and i ts codification; 15 See the impressive list of UN fostered law-making treaties at Multilateral Trea ties Deposited With The Secretary-General (http://untreaty.un.org/ENGLISH/bible/englishinternet bible /bible.asp). 16 It is worth recalling that the terms public international law and private intern ational law do not render the division between the public and the private sphere of legal relat ions in the domestic law sense. Rather, all public international law for a long time canbe sai d to have had a private law character for its voluntarist underpinnings. 17 E.g. Bruno Simma & Andreas Paulus, The International Community : Facing the Chall enge of Globalization , 9 European Journal of International Law 1998, 266-277. 18 See the Report of the ILC on the work of its fifty-sixth session , UN Doc. Su pplement No. 10 (A/59/10), at 281-304. 19 Legality Of The Threat Or Use Of Nuclear Weapons, International Court of Just ice, Advisory Opinion (8 July 1996); Declaration by President Bedjaoui, 13. 20 Philip Allott, The Health of Nations: Society and Law beyond the State, Cambr idge University Press, 2002, at 304. alliance agreements, which for their secret character were an acknowledged facto r in the outbreak of the War. Furthermore, it gave a new impulse to the idea of lawmaking treaties . The grand project of international law codification started with the mostly unrewarding - endeavours under the auspices of the League of Nations.13 T he United Nations, with the explicit aim of codification and development of international law in the Charter (in Article 13(1),14 without counterpart in the League Covenant), on the contrary was to be highly prolific.15 This treaty-practice, in particular the new class of treaties stipulating international human rights, bro ught the discussion on objective legal norms on a more general plane. The interest in law-making treaties is inextricably linked to the emergence of

a public dimension16 to the international legal order. Such a public dimension, which may be related to a particular functional field (such as the use of force, the c are for transboundary watercourses or the protection of the individual), is felt to brin g the need for rules with a statutory function, above and beyond rules governing volun tary legal relations between equal subjects. This has become clear once more in relat ion to the vision of an international community17 - a vision which is coupled with the idea of a unified system of law (as becomes clear from the concern over its fragmentation ).18 Thus, some ten years ago the president of the International Cour t of Justice stated: [t]he resolutely positivist, voluntarist approach of international law still current at the beginning of the century ... has been replaced by a law more readily seeking to reflect a collective juridical conscience and respond to the social necessities of States organized as a community. 19 As mentioned, for their contractual set-up treaties are not per se the instrumen t for the creation of such communal rules. Indeed, treaties exist much longer than the notion of international law,20 while ted to international law existed long before it star

21 Reuter, supra note 10, at 6. 22 Cf. introduction on the ILC website (http://www.un.org/law/ilc/). 23 Arnold McNair, The Law of Treaties, Cambridge University Press, 1961, at 739. 24 Which up until then had been the main take on law-making treaties ; cf. Georges Scelle: [Law making treaties] present an entirely different interest of stability and gen erality. They aim to establish a rule of law and are true legislative acts (Le Pacte des Nation s et sa liaison avec le Trait de Paix, Paris, 1919, at 49 translation quoted in D Amato, infra note 81). 25 Supra note 4, at 31. be written in treaties.21 Indeed, the central law-making role which has come to be conferred upon the UN codification conventions is essentially due to a lack of alternative. States drafting the UN Charter had strongly opposed conferring on t he Organization the power to enact binding international rules. Likewise, proposals to give the General Assembly powers to impose certain general conventions on states by some form of majority vote had been rejected.22 To remain with the domestic analogy, treaties thus take care of both the contractual and the statutory function in international law. This lies at the ro ot of the much-quoted statement by Lord Arnold McNair that [t]he treaty is the only and sadly overworked instrument with which international society is equipped for the purpose of carrying out its multifarious transactions. 23 The treaty instrument ma y regulate any subject matter, but its scope and source are perceived very much in a contractual framework. Thus, in law-making treaties the relation between form an d function is strained.

II. Law-Making Treaties in the Law of Treaties In the preparations for the first Convention on the Law of Treaties one ILC Spec ial Rapporteur proposed to differentiate between treaties on the basis of content. S ir Gerald Fitzmaurice, who worked on an expository code on the law of treaties between 1955 and 1960, was also the most theoretically inclined of the four Spec ial Rapporteurs, and it is therefore especially fitting to consider his work in this Special Issue. Sir Gerald took a novel and rather technical approach which not only looked to the function of a treaty24 but also to the legal relations resulting from it. Essentially his classification is still relevant today. He distinguished three main categori

es of treaties: first, there would be treaties, bilateral or multilateral, that are ba sed on a reciprocal exchange of rights or benefits (as would be any classically contractu al treaty, for instance one establishing a customs union). Secondly, he identified a class of interdependent treaties, whose character make the performance of one party dependent on that of all the other parties (the example given being a disarmamen t treaty). Finally, he singled out a category of law-making treaties (traits-lois), or system or rgime creating treaties , or treaties involving undertakings to conform to certain standards and conditions, or any other treaty where the juridical force of the obligation is inherent, and not dependent on a corresponding performance by the other parties to the treaty , so that the obligation is of a self-existent character, requiring an absolute and integral obligation and performance under all conditions .25

26 Cf. the terminology used by the International Law Commission in its study of the topic The law and practice relating to reservations to treaties (e.g. Report of the Interna tional Law Commission (Fifty-sixth session, 2004), GAOR Supplement No. 10 (UN Doc. A/59/10) , 290). 27 Cf. the Inter-American Court of Human Rights in the Ivcher Bronstein Case (Co mpetence), 1999 IACHR 9 (24 September 1999), 42 and 45. 28 Ibid. At 54, 55. 29 See the critical observations by McNair on the futility of approaching consti tutive treaties of international organizations as regular treaties; he recommended that we free oursel ves from the traditional notion that the instrument known as the treaty is governed by a single set of rules. The author grouped IGO constituent treaties with dispositive treati es under the heading of what would later be termed objective regimes . (Arnold McNair, The Functi on and the Differing Legal Character of Treaties , XI British Yearbook of Internation al Law 1930, 100-118, at 118); See also the reference to the category of constitutive treatie s in the Dissenting Opinion of Judge Alvarez to the Reservations To The Convention On The Prevention And Punishment Of The Crime Of Genocide Advisory Opinion, 1951 ICJ Reports 15, a t 51. 30 Ch. One, Part III, Article 19 - Termination or suspension by operation of law . Case of fundamental breach of the treaty (conditions and limitation of application), see supra note 4, at 31. 31 Ch. One, Part II, Article 19 - Legality of the object (conflict with previous treaties special case of certain multilateral treaties); supra note 5, at 27, 28. Cf. article 30 of the VCLT. In the terminology of Fitzmaurice, law-making treaties are a sub-category of inherent treaties (in the following either that term will be used, or the more rec ent normative treaties ,26 creating objective obligations 27). The commentary mentions human rights treaties as an example of law-making treaties; maritime regimes as an example of system or rgime creating treaties ; and ILO conventions as one example of standard setting treaties. Obligations arising under such treaties are not nei ther juridically, nor from a practical point of view dependent on a corresponding performance by the other parties.28 It is noteworthy that a reference to constit utive treaties of international organizations is lacking, while these would appear as an outstanding example of inherent treaties, and had been identified as a separate category for instance by McNair in 1930(!).29 However, as illustrated by the commentary s examples, in the scheme of Fitzmaurice rgime is taken in the territorial sense only. The specific self-existent character of inherent treaty obligations has legal consequences in two situations, both covered in the first Chapter on Validity of

Treaties . One is the provision on fundamental breach of treaty a precursor of material breach Article 60 VCLT. This envisages a special regime for normative agreements: a breach by one party would give no ground to the other parties - no t even vis--vis the defaulting party - for termination of the treaty (each party s obligations being self-existent ), nor non-performance of certain obligations stemming from the treaty (the obligations being integral ).30 When, on the contrary, treaty relations are bilateralized, the legal consequence of breach may be so as well. Thus, under a reciprocal treaty a state suffering from another party s breach of obligations may respond by a nonperformance in its relation with the defaulting state. In case of an interdepend ent treaty a breach of obligations by one party would be cause for the obligations o f all other parties to cease to exist, also vis--vis each other. Likewise, a special regime is proposed for the case of conflict between successive normative treaties,31 (in this context grouped with interdependent

32 Supra note 5, at 27, 28; Commentary 33 Draft article 18, supra note 34 Supra note 5, at 44, 93. 35 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 IC references at 92. 36 YILC 1950, Vol II, 161, 162; YILC 1959,Vol. II, 9; and the first report by Spe cial Rapporteur Sir Humphrey Waldock, YILC 1962, Vol. II, 39 at 128; briefly discusse d in Shabtai Rosenn 1989, at 11-13. 37 Part I, Introdu (commentary). 38 Article 60(5), added during the Diplomatic Conference, reads: Paragraphs 1 to 3 do not treaties). When conflict arises between such treaties in time, the later treaty would be null and void as a whole.32 In contrast, conflicting multilateral treaties of th e mutually reciprocating type were suscetible to the regular lex posterior rule,33 f or the reason that treaty relations can be bilateralized and the substance of the treat y is such that a change in one relationship can be effectuated independently of the o34 Fitzmaurice clearly proceeded from a contractual conception of the treaty, and viewed multilateral treaty regimes as consisting of ever so many bilateral relationships. Such both in case of regular contract treaties where a multilater al treaty can be fragmentized entirely into bilateral relationships which exist independently of each other - and in case of interdependent treaties where relat ions are construed as bilateral, but dependent on each other for their existence. As appears form the system of his draft articles (1, II, 19: Special case of certain multilateral treaties ) this was the default position. The exception is the class of normative treaties, which for their content have given rise to special rules in two central areas of the law of treaties: consequences of breach, and conflict of tr eaties. Interestingly, Fitzmaurice proposed no special regime in relation to reservation s. This may be owed to the landmark Opinion which the International Court of Justice had rendered a few years before on Reservations to the Genocide Convention. The lawmaking character of the Convention as such had been emphasized, leading, perhaps most importantly, to the coinage of the object and purpose test. But for the purpose of establishing the legal effect of objections to reservations the Court had taken the position that even a law-making mu , bilateral relationships.35

The subsequent Special Rapporteur and the International Law Commission did not follow up upon the idea of substantial differentiation between treaties. One reason certainly was that the International Law Commission had decided early on to concentrate on the form of the treaty,36 and not on the agreement (which is why the Vienna Convention could leave out for instance the performance of treaty obligations from its scope). And integral treaties, as also Fitzmauri rst report, are form-wise not different from other treaties.37 Integral treaties and inherent obligations are thus not addressed in the conventional law of treaties as it now stands in the 1969 Vienna Convention. Art icle 60(5), which excludes humanitarian treaties from the material breach rgime, may

apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular persons protected by such treaties. 39 Article 41 (Agreements to modify multilateral treaties between certain of the parties only): possible, if [the modification] (1.b.i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations ; Article 58 (Suspension of the operation of a multilateral treaty by agreement between certain of the parties only): poss ible, if [the suspension] (1.b.i) does not affect the enjoyment by the other parties of the the performance of their obligations; for 60(2) see infra note 47. 40 See also Joost Pauwelyn, The Nature of WTO Obligations, 2002, NYU Jean Monnet Working Paper No.1/02 (stable URL: http://www.jeanmonnetprogram.org/papers/02/02010102.html#P446 _124811), section I, 3, in which th Fitzmaurices division in three classes of treaties. 41 Article 20(3) reads: When a treaty is a constituent instrument of an internati onal organization and unless it otherwise provides, a reservation requires the accept ance of the competent organ of that organization. Article 5 ( The present Convention applies t o any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant r ules of the organization. ) does not serve to illustrate the same poin clause, limiting the effect of the law of treaties altogether. 42 Commentary to final draft article 17(3), YILC 1966, Vol. II, at 27; see also Jan Klabbers, "On Human Rights Treaties, Contractual Conceptions and Reservations", in Ineta Zieme le (ed.), Reservations to Human Rights Treaties Reconciliation, 2004, 149-182, at 1 43 Cf. supra note 35, 24 and 25. 44 The Fitzmaurice category of contractual multilateral treaties, as a compilati on of bilateral treaty relationships, is used in a fruitful manner by Joost Pauwelyn, "A Typolog y of Multilateral Treaty Obligations: Are WTO Obligations Bilater European Journal of International Law 2003, 907-951 see infra. 45 Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal ; Entry into force on 1 october 1979, after deposit of instrum obligations. Also articles 41(1)b(i), 58(1)b(i) and 60(2) single out treaties, b ut a class reminiscent of Fitzmaurices interdependent treaties.39 Finally, articles 53 and 64 (nullity in case of conflict with jus cogens) could be listed, although arguably these provisions are a special case; rather than providing specific rules for certain treaties on the basis of content, they set limits to the freedom of contract, and to the very

existence of a treaty, altogether.40 The most notable case of in casu integral treaty substance having legal effect, however, is Article 20(3), which requires accepta nce of a reservation to an organization s constitutive treaty by the organization, rather than by the states parties to the treaty.41 On this point, the Commission had held th at the integrity of the instrument is a consideration which outweighs other considerations 42 (the other considerations being flexibility and universality, contrasting motivations articulated by the International Court in the Genocide Opinion).43 Seeing that the Vienna Convention focusses on the form of the treaty instrument, could the special character of normative treaties perhaps be capture d in formal terms? This is not really the case. It is true that to some extent normat ive treaties overlap with multilateral treaties. While not all multilateral treaties are normative treaties,44 normative regimes are usually established by multilateral agreements (although not always: see the 1977 rgime treaty on the Panama Canal between Panama and the United States).45 Under circumstances the substantive tra its

46 On Article 60 e.g. Jan Klabbers, Side-stepping Article 60: Material Breach of Treaty and Responses Thereto , in Finnish Branch of ILA 1946-1996, Essays on International La w, 1998, 2042; Malgosia Fitzmaurice, Material Breach of Treaty: Some Legal Issues , 6 Austrian Review of International and European Law 2001, 3-44. 47 Cf. Article 60(2): A material breach of a multilateral treaty by one of the pa rties entitles: [ ] (b) a party specially affected by the breach to invoke it as a ground for suspen ding the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a g round for suspending the operation of the treaty in whole or in part with respect to itsel f if the treaty is of such a character that a material breach of its provisions by one party radica lly changes the position of every party with respect to the further performance of its obligatio ns under the treaty. 48 International Court of Justice, The Gabckovo-Nagymaros Project (Hungary v. Slo vakia), Judgment, 25 september 1997 (on Article 60, invoked by Hungary, in particular 96, 105108). 49 See e.g. Bruno Simma, "From Bilateralism to Community Interest in Internation al Law", 250 Recueil des Cours de l'Acadmie de droit international 1994, 221-384, with pages 3 22-352 on the impact of community interest on the circumstances and procedures of treaty-makin g . 50 See e.g. Catherine Brlmann, "Limits of the Treaty Paradigm", in Matthew Craven & Malgosia Fitzmaurice (eds.), Interrogating the Treaty and the Future of Treaty L aw, Wolf Legal Publishers, 2005, [1-18]. of treaties have thus found their way into the law of treaties, but this is more of a collateral effect. The multilateral treaty figures in the Vienna Convention as a formal institution, and has been accommodated by the Convention to the best of its abil ities. The effect is visible for instance in the somewhat unwieldy provision of Article 60 of the 1969 Convention, on termination or suspension of a treaty on t he basis of material breach by another party.46 The article provides what would a p arallel to the exceptio non adimpleti contractus in domestic law of contract, but (logic ally) not without effort when it comes to multilateral treaty relations. Here the Conventi on resorts to a differentiation based on content, which, incidentally, is similar t o that of the interdependent treaties in Fitzmaurice s classification.47 As to the relation

between the defaulting state and the state especially affected , the Vienna Convention maintains strict reciprocity, but it adds a variable for other states parties who may suspend the treaty only if their positions are radically changed. A furthe r safeguard for the multilateral treaty rgime is the qualification that the breach be material . In the history of the 1969 Vienna Convention material breach has rarely been explicitly invoked - with the 1997 Gabckovo-Nagymaros case as a comparatively recent exception - and has never passed the judicial test.48 The conventional law of treaties is thus geared to form and procedure, and the substance of treaties is a correspondingly weak factor. The task of creating general legal regimes befitting a legal community has put a burden on the contra ctual disposition of the treaty.49 The integral and inherent nature of normative treat y obligations interferes with the functioning of contractual mechanisms such as reciprocity. From a different angle, the question is to what extent the treaty i s suited to accommodate the objectives that come with a community perspective.50 Here, th e limitations of the formal framework have prompted doctrinal development and discussion on how to have normative treaties governed by the law of treaties in a way that is in line with their special objectives. Such development is visible in se veral areas of the law of treaties, a few of which may be mentioned.

51 Already the first paragraph of article 31 covers the basic range of intepreti ve tools: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 52 YILC 1966, Vol. II, at 38, 4. 53 The approach taken in the Vienna Convention is that the text is presumed to b e an authentic expression of the parties intentions against this background the primary interpre tive exercise is to establish the meaning of the text; YILC 1966, Vol. II, at 220; cf . Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, Manchester University Pr ess, 1984, at 115. 54 references 55 Genocide Opinion, 1951, supra note 35, Dissenting Opinion Judge Alvarez, at 5 3. 56 in the context of the legal system (sic) in force at the time when the interpre tation takes place . This interpretation procedure is also that applicable to law-making treati es (Vereinbarungen), as, for instance, the United Nations Charter (Aegean Sea Contine ntal Shelf Case (Greece v. Turkey), Dissenting Opinion Judge De Castro, 1978 ICJ Reports 3, at 68-69); cf e.g. That such account [of the subsequent evolution of the law] must be taken at any rate in the case of jurisdictional and law-making treaty provisions seems clear (Marit ime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Se parate Opinion Judge Shahabuddeen, 1993 ICJ Reports 38, at 134). The particular law-making objectives of normative treaties are visible more than anywhere in the field of interpretation. It should be noted that the nonhierarchical structure and general wording of article 31 VCLT leave considerable room in this respect51 - the Commission famously commented that the interpretation of documents is to some extent an art, not an exact science. 52 Interpretation of normative treaties could be summarized as organic . Rather than retracing the will of the parties, as in a domestic or international instrument of contractual inspiration,53 the normative treaty is interpreted with a view to it s object and purpose, the total of its provisions, and, where appropriate, its context in the legal system as a whole.54 This assumes as a premise that the treaty regime has become independent from the instrument by which it was created a construction we find proposed already in relation to the Genocide Convention: [T]he said [law-making] conventions must not be interpreted with reference to the preparatory work which preceded them; they are distinct from that work and have acquired a life of their own; These conventions must be interpreted without regard to the past, and only with regard to the future. 55 Such independent legal existence leaves room for a teleological approach, as wel

l as for a systematic interpretation

which takes into account the context of the entire

legal system in which the norm operates. This is an interpretive principle typic ally used in domestic (statute) law, when the unity of the legal system is undisputed .56 The related evolutive interpretation in the classic, constitutionalist sense - als o reserved for the interpretation of normative treaties - pertains to developments of the law. It is different from the doctrine of the treaty as a living instrument a successful guiding principle of the case law of the European Court of Human Righ ts as the latter is concerned with developments in social reality. But what they ha ve in common is that also an interpretation of the European Convention in the light of

57 Cf. Tyer v. UK, 25 April 1978, Appl. nr. 00005856/72, 31; Loizidou v. Turkey (Judgment Preliminary Objections), 23 March 1995, 71; Selmouni v France judgment of 28 Jul y 1999, 101. 58 It should be noted that in other, classic inter-state branches of internation al law the living instrument interpretation has not taken on. 59 Shabtai Rosenne, Developments in the Law of Treaties (1945-1986), 1989, at 19 0-200, with references to traditionalist and constitutionalist writings in footnote 17; a survey of doctrinal views and ICJ case law on the interpretation of constituent treaties ( not yet including the Nuclear Weapons Opinion) in Tetsuo Sato, Evolving Constitutions of International Organizations, 1996. 60 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Repo rts 1996, 26 (emphasis added). 61 See supra notes 39-41 and accompanying text. 62 James Crawford, The International Law Commission's Articles on State Responsi bility (Introduction, Text and Commentaries), 2002, commentary to article 42, at 257 (a nd present day conditions 57 an interpretation still further removed from the consen t of the original parties - is possible only in case of a normative treaty.58 As the provisions in the Vienna Convention (see on article 20(3) above), specifi c doctrinal practice regarding normative treaties is the most clear when the ensui ng legal regime is institutionalized, and thereby formalized. Thus, the interpretat ion of constituent instruments of international organizations from the 1949 Reparation case onwards goes to show a consistent trend: to teleological interpretation, and foc us on the practice of the organization, with a corresponding desinterest for the trava ux prparatoires, and the original intent as well as the subsequent practice of the o riginal treaty parties.59 In the 1996 (WHO) Nuclear Weapons Opinion the Court takes its interpretive exercise one step beyond regular (even if teleological) treaty interpretation to move into a truly constitutional discourse, proceeding from the functions of the organization, rather than working towards establishing them. Moreover, in one of the less well-known passages of the Opinion, the Court uses an explicitly systemic approach : As these provisions [in Article 63 UN Charter] demonstrate, the Charter of the United Nations laid the basis of a system designed to organize international co-operation in a coherent fashion by bringing the United

Nations, invested with powers of general scope, into relationship with various autonomous and complementary organizations, invested with sectorial powers. The exercise of these powers by the organizations belonging to the United Nations system is co-ordinated, notably, by the relationship agreements concluded between the United Nations and each of the specialized agencies [...] It follows from the various instruments mentioned above that the WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic o f the overall system contemplated by the Charter [...] any other conclusion would render virtually meaningless the notion of a specialized agency. 60 To return to the law of treaties Convention, the classification proposed by Fitzmaurice reciprocal, interdependent and integral treaties is still visible.61 It relevance is illustrated in that it also figures in the commentary to the ILC Ar ticles on State Responsibility.62 These Articles do not distinguish between integral and

footnote 706). 63 ..performance by the responsible State is a necessary condition of performance b y all the other States ; this is the so-called integral or interdependent obligation. (Ibidem ) 64 Either as an injured state (art. 42), or as a state other than an injured state w ho is part of a group to which the obligation, protecting a collective interest, is owed (art. 4 8). It may be noted that the distinction between erga omnes (towards the whole international c ommunity) and erga omnes partes (towards all members of a group e.g. established by a mult ilateral treaty) is concerned with the scope of the community only, not with the nature o f legal relations; it therefore does not overlap with the distinction between integral a nd interdependent treaties. 65 Supra note 30 and accompanying text; note that for the purpose of establishin g invalidity integraland interdependent treaties are grouped together, but as distinct catego ries, by Fitzmaurice as well (supra note 31). 66 Pauwelyn, 2003, Typology... , supra note 44; and Pauwelyn, 2002, Jean Monnet, su pra note 40, section I. 67 Pauwelyn, 2002, Jean Monnet, supra note 40, section II. 68 Pauwelyn, 2002, Jean Monnet, supra note 40, section III. 69 Pauwelyn, 2002, Jean Monnet, supra note 40, section II.6. interdependent treaties (rather, from the commentary they appear to be taken as identical,63 contrary to the scheme of Fitzmaurice). True to say, the distinctio n between interdependent treaties (where the performance by one party is dependent on that of all the others) and integral treaties (where the performance by each party is independent from that of any other party) is less important for the purpose of invoking another state s responsibility,64 than for establishing the possibility o f termination on the basis of the law of treaties.65 Fitzmaurices classification has had a revival also by Joost Pauwelyn s in-depth analysis of WTO obligations. The author goes back to the proposition that certai n multilateral treaties are reciprocal in nature, and hence essentially amount to a compilation of bilateral contractual relationships. Such bilateralization, as Pa uwelyn convincingly applies to the 1994 WTO treaty, would have consequences for issues such as countermeasures and modification of treaty obligations inter se.66 Interestingly, in the same essay the author convincingly develops a second argument in relation to WTO obligations which in contrast seems closely linked t o the notion of normative (i.e. non- bilateralizable ) treaties. A treaty such as the 1994 WTO agreement,67 (and presumably any general normative regime which is regularly

modified, added to and updated, be it the 1973 CITES or the 1944 ICAO Convention) has an ongoing existence. Since WTO treaty provisions are dynamic in nature and supported by state consent that was not exhausted in 1994 but continu es to be confirmed, WTO treaty obligations are defined as continuing norms. 68 Rules such as lex posterior would therefore not be readily applicable, nor any r ule which relies on a temporal boundary (art 30 of the Vienna Convention), because continuing treaties cannot be identified with the date on which they are signed, cq. opened for signature. These treaties should be approached in an evolutionary rathe r than contemporaneous manner.69 This concept of evolutionary or dynamic interpretation is focussed entirely (unlike the systematic approach or the livin g instrument doctrine), on the temporal element. It follows that, rather than to l ex posterior, interpreters should look for instance to the lex specialis principle. As to the nature of integral treaty norms, it had already been pointed out that normative treaties are less prone to produce a well-defined interim obligation i n the

70 in one form or another, an obligation exists not to impair the value of an unde rtaking pending ratification or entry into force. ( III); as one can hardly defeat the objec t and purpose of generally desirable behavior ( VIII). Also for that reason the author proposes a test of manifest intent or manifest bad faith - Jan Klabbers, "How to Def eat a Treaty s Object and Purpose Pending Entry into Force: Toward Manifest Intent", 34 Vanderbilt Journal of Transnational Law 2001, 284-332. 71 This particular point elaborated e.g. in Catherine Redgwell, Reservations to T reaties and Human Rights Committee General Comment No. 24(52), 46 International and Comparati ve Law Quarterly 1997, 390-412. 72 Bruno Simma, "Reservations to Human Rights Treaties - Some Recent Development s", in Gerhard Loibl, Gerhard Hafner et al. (eds.), Liber Amicorum Professor Seidl-Hohe nveldern - In Honour of His 80th Birthday, 1998, 659-682, at 660. 73 Belilos v. Switzerland (10328/83) [1988] ECHR 4 (29 April 1988), cf. 50. The C ourt's competence to determine the validity under Article 64 (art. 64) of the Conventio n of a reservation or, where appropriate, of an interpretative declaration has not give n rise to dispute in the instant case . . 74 HRC General Comment No. 24, On issues relating to reservations upon ratificati on or accession to the Covenant or the Optional Protocols thereto, or in relation to d eclarations under article 41 of the Covenant , (Fifty-sixth session), 4 November 1994,CCPR/C/21/Rev.1/Add.6, 18; the US, the UK and France objected to the Committee s view that it could disregard an incompatible reservation. (HRC Conclud ing Observations on the United States, HRC Report for 1995 A/50/40, at 278 and Annex ; and HRC Report for 1996 A/51/40 , annex). sense of article 18 Vienna Convention, than contractual treaties. Integral oblig ations are never quite complied and done with, as it were, and hence the breach of thei r object and purpose is not readily established either.70 Finally, in the context of normative treaties the issue of reservations should be mentioned. In the absence of a central authority to decide on a reservation s compatibility with object and purpose, the two-stage test of i. legality of the reservation (Article 19(c)) and ii. acceptance of the reservation vel non by the treaty partners (Article 20) has become muddled.71 However, precisely in the case of normative treaties the legality test is felt to be important. And precisely in t he case of normative treaties, which pose inherent obligations, the formal reciprocity of tre aty obligations lacks practical effect and therefore does not function as a restrain t on the making of reservations. These are notorious factors in the case of human rights treaties, which make for a particular class of normative treaties. A human right

s treaty not only stipulates inherent obligations, but it is

essentially inward targeted ; it

turnes States insides out in an almost literal sense. 72 While the practice of reservations, notably to human rights treaties, is perceived as a problem, a solution in terms of new rules does not appear to be at hand. In as far as this can be construed as a legal problem, it would seem to re quire a centralized authority to assess the legality of reservations in order to concili ate the freedom of contract of states with the desired integrity of a normative treaty r egime. Such a role has been assumed by the European Court of Human Rights73 and the UN Human Rights Committee74 with varying success. There does not (yet) appear to be political support to attribute this role to treaty bodies on the basis of a g eneral rule. The study currently on the agenda of the International Law Commission on reservations in relation to normative multilateral treaties including human right s

75 the consensus in the Commission that there should be no change in the relevant provisions of the 1969, 1978 and 1986 Vienna Conventions, 2003 ILC Report UN Doc. A/58/10, Supplement No. 10, at 148. 76 For the effect of this system on human rights treaties, e.g. Ryan Goodman, "H uman Rights Treaties, Invalid Reservations, and State Consent", 96 American Journal of Inter national Law 2002, 531-560; recent developments are analyzed in Jan Klabbers, On Human Rights treaties 2004, supra note 42. 77 Sir Gerald Fitzmaurice, "Some Problems Regarding the Formal Sources of Intern ational Law", in F.M. van Asbeck, et al. (ed.), Symbolae Verzijl : prsentes au professeur J. H. W.Verzijl l'occasion de son LXX-ime anniversaire, 1958, 153-176, at 157-160, quotation at 1 59. 78 South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), International Court of Justice [including Sir Gerald Fitzmaurice], 1966 ICJ Reports, at 7. 79 Supra note 19. 80 Dissenting Opinion Judge Alvarez, supra note 29, at 52-53 (emphasis added). 81 Anthony D Amato, "Treaties as a Source of General Rules of International Law", 3 Harvard International Law Journal 1962, 1-35, citation in section V.a. treaties, is organically linked to the 1969 Vienna Convention,75 and for now adhe res to the classic law of treaties system.76

III. Separate Categories? Considered in themselves, and particularly in their inception, treaties are, form ally, a source of obligation rather than a source of law. This proposition by Sir Gerald Fitzmaurice (in his quality of learned author)77 brings us back to the awkwardne ss of the notion law-making treaty . That notion reflects the functions and ideals tied i n with the vision of a legal order, and possibly an international community - but on a formal level treaties have difficulty catering those ideals. Individual consent and reciprocity are entrenched in the treaty machinery, and the scope of the treaty s binding force, governed by the canonical pacta tertiis rule, is limited to the p arties. From that perspective treaties would not be able to create law in the sense of nor ms that eo ipso bind all subjects in a legal order, and could not be a formal sourc e of international law to begin with. This is a formal and arguably formalist point, but it remains problematic. As the Court held in the South West Africa cases: However, e ven such law-making treaties bind only signatory States and they do not bind States which are not parties to them. 78

Meanwhile, the statutory function on the international plane is open, and the law-making treaty is felt to be a powerful and necessary idea in the shaping of wo rld relations. The logical response then is to look less to form and more to substan ce as appears from the above-cited declaration by President Bedjaoui.79 Judge Alvar ez, in his dissenting opinion to the 1951 Genocide Advisory Opinion, had stated: the said [law-making] conventions are almost real international laws ..these conventions signed by a great majority of States ought to be binding upon the others, even though they have not expressly accepted them: such conventions establish a kind of binding custom, or rather principles which must be observed by all States by reason of their interdependence and of the existence of an international organization. 80 In a similar vein D Amato - [i]t is true that treaties are agreements, but so also is a Constitution an agreement among the citizens - in 1962 had taken pains to explain why law-making treaties should be considered to create binding effect for nonparties: not as a source of custom, but as an independent source.81 Such essenti ally

82 [T]he Court's opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law , to bring into being an entity possessing objective international personality (Reparation F or Injuries Suffered In The Service Of The United Nations, International Court of Justice, A dvisory Opinion, ICJ Reports 1949, 174, at 185). 83 Reuter, supra note 10, at 35. 84 Jan Klabbers, "On Human Rights Treaties ", 2004, supra note 42, at 181. 85 Adopted on 31 October 2003 at the fifty-eighth session of the General Assembl y of the United Nations (UN Doc. A/RES/58/4). 86 Adopted in Geneva, 21 May 2003. 87 Adopted at the Conference of Plenipotentiaries on the Stockholm Convention on Persistent Organic Pollutants at Stockholm on 22-23 May 2001. 88 For example 'adjustments' to the original standards laid down in the 1987 Mon treal Protocol on Substances which Deplete the Ozone Layer are - failing consensus adopted by a two thirds majority - binding on all parties. Many technical organizations, or Multi lateral Environmental Agreements envisage such procedures (cf. e.g. Robin Churchill & Ge r Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental along the same lines as the International Court in the 1949 Reparation Opinion w hen it argued that a majority of 50 states by signing the UN Charter were capable of creating legal effect also for the 51st state which had never given its consent to the treaty.82 The problem is not, as it is sometimes presented, the contrast between lawmaking and contractual treaties. This traces back to to the general opposite bet ween state sovereignty and international community and that is the same old liberal t ension between freedom of the subjects and collective interest (or, just so much constraining order as is needed to safeguard individual freedom) which generally characterizes the machinery of (late-)modern international law. Nor is the probl em that the treaty has a dual function. In his treatise on the law of treaties Prof essor Reuter mentions, almost in passing, that distinctions like the one between lawmaking and contractual treaties, have been shown to be rather inaccurate and irrelevant. 83 Proceeding from the conventional law of treaties, which is based on the premise of one single treaty instrument and geared almost entirely to form, it i ndeed seems to have relative importance (although the system is stretching its boundar ies). The true problem is the gap between contractual form and law-making

function that exists in normative treaty-making. This discrepancy can be inconvenient when we move within the positivist, formal sources paradigm, as II above has sought to indicate. In relation to human rights treaties Klabbers rema rks: [t]he tragedy is that reservations can only be fought with a contractual perspect ive, while the contractual perspective itself fails to satisfy the sense of idealism and progress inextricably bound up with human rights. 84 Essentially this holds for al l normative treaties, also for the United Nations Convention Against Corruption;85 the WHO Framework Convention on Tobacco Control;86 and the Stockholm Convention on Persistent Organic Pollutants;87 to name a few recent UN treaty p At this point there seem to be two options. One is to abandon the law of treaties - that is: voluntarist - paradigm for the creation of general normative regimes altogether. This is at stake for instance in the discussion on whether to label certain treaty adaptations, such as ICAO standards adopted by the council of the organization and binding upon all the members, as majority legislation or rather a s an evolved form of consent-based treaty practice.88 Undoubtedly there is a shift in

Agreements: A Little-Noticed Phenomenon in International Law , 94 American JIL 200 0, 623-659). Already Charles Alexandrowicz (The law-Making Functions of the Special ised Agencies of the United Nations), 1973, at 40-69 (on quasi-legislative acts of Specialised Agen cies) held this is no doubt an extra-treaty process (at 152). 89 examples 90 Following the suggestion of e.g. McNair in 1930 see supra note 29. 91 I am indebted to Jan Klabbers for articulating this view. 92 Supra note 41 and accompanying text. 93 Cf. ..a treaty was rarely entirely normative or entirely synallagmatic: in mos t cases, including human rights, a treaty contained both contractual clauses recognizing reciprocal rights and obligations and normative clauses (1997 ILC Report, Chapter 5, 69). 94 Jan Klabbers, "On Human Rights Treaties ", 2004, supra note 42, at 154. 95 This appears as a procedural variant of the strategy of referral (Martti Kosken niemi, From Apology to Utopia: The Structure of International Legal Argument, 1989, 439 ff. (on UNCLOS) which has a rule defer the material decision to another rule; see also David Ken nedy, International Legal Structures, 1987, 201-245; and Philip Allott, Mare Nostrum: A New International Law of the Sea , 86 American Journal of International Law, 1992, 764 -787. 96 See supra note 41. perception in this respect, but certainly it is at its early stages. As yet, int ernational practice uses predominantly treaties to create normative regimes, and emphatical ly stays with the law of treaties discourse underscoring the expression of consent, the sovereignty and the free will of the subjects.89 A second option is to acknowledge the disconnexion between form and function that may occur. A next step would then be to abandon the idea of substantive rules covering all treaties90 and, while considering that general sy stematics are out of reach, to aim and fix specific rules for specific treaties.91 This wo uld seem the most promising course in the short run, as it works from the paradigm curren tly prevailing. One example of that is Article 20(3) of the Vienna Convention: the r ule for reservations to organizations constitutive treaties is different from the gen eral regime: reservations to such treaties require the consent of the organization.92 And still, witness the debate on reservations, it is difficult enough to set apart s pecific classes of treaties. For one thing because of the inevitable difficulty of fixin g the dividing line between normative and contractual treaties.93 Another reason is th at in the end much depends on political will.94 This approach is similar but less farr

eaching than the deferral strategy where the general level settles for procedural rules and defers the substantive decision elsewhere95 - for the law of treaties this would mean that on the general level specific rules would not be formulated at all, but tha t they would be deferred to specific treaty regimes. The Vienna Convention contains one example, and again it relates to a regime that is not only constitutionalized, b ut also institutionalized: the general reservation clause of article 5 which limits the operation of general law of treaties altogether in respect of constitutive treaties of int ernational organizations.96 What may be summarized as the procedural strategy seems to fit in well with developing doctrine and practice. Apart from the provisions in the Vienna Convention two trends emerge from a cursory view at normative treaties and their place in the law of treaties. These are the move to a constitutional the effect of centralization. discourse and

97 Supra II. 98 Supra note 35. 99 Cf. Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Obje ctions, Judgment, ICJ Reports 1998, 275, 25. 100 The Effect of Reservations on the Entry into Force of the American Conventio n on Human Rights (Arts. 74 and 75), Inter-American Court of Human Rights, Advisory Opinion OC-2/82, of September 24, 1982, 29. 101 Reuter, supra note 10, at 128 (emphasis in the original); see 121-129 on som e alternative perspectives from which to approach the phenomenon of objective regimes . 102 Matthew Craven, "Legal differentiation and the concept of the human rights t reaty in international law", 11 European Journal of International Law 2000, 489-519, at 5 19. See also the In the scheme of Fitzmaurice,97 the essence of normative treaties or integral obligations lies in the absence of a bilateral, synallagmatic relation with other treaty parties. An underlying premise is that once the treaty is concluded, the legal o rder it has established, assumes a life of its own. This is why the distinction between reciprocal and interdependent treaties, on the one hand, and inherent treaties ( the true law-making instruments), on the other, is relevant. This construct is differe nt from the network of bilateral relations that was envisaged for the purpose of th e reservations regime by the International Court of Justice in its Opinion on the Genocide Convention.98 Rather, the construction is reminiscent of the consensual bond which comes into being upon acceptance of the jurisdiction of the International Court of Justice under the optional clause in Article 36(2) of the ICJ Statute.99 It is also how the Inter-American Court for Human Rights construed th at [i]n concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume vario us obligations, not in relation to other States, but towards all individuals within their jurisdiction. 100 Related to this is the constitutional perspective which is visible in contemporary practice regarding normative treaties in general, notably their interpretation. Here the original agreement has faded into the background, leavi ng an an independent, self-propelling treaty regime. This view allows for normative tr eaties to be interpreted in an evolutionary manner, the purport of the rules changing in connexion with other legal norms, or with social reality. There are also strong arguments to use the evolutionary interpretation in a temporal sense, and to con sider normative treaties as continuing norms to which for that reason certain time-based rules of the law of treaties do not apply. The detachment of the original treaty from the resulting regime is not new

thus the concept of the objective regime has developed from the longstanding category of status treaties. Legal scholars have come to agree on the view that the treaty-based regime, once established, simply lies outside the scope of the law of treaties. Or, in the words of Paul Reuter: [ ] the various theoretical views follow ed on this point by the International Law Commission [ ] regard certain legal effects not as a consequence of the treaty itself but of the situation established by th e treaty. 101 The constitutional approach would thus enable us to detach the treaty mechanism from the treaty regime: it is certainly true that treaty law has a certai n utility but that is a far cry from any supposition that the [human rights] instrum ents in question can only be understood within that framework. 102 Technically this cou ld

above-quoted remarks by McNair, supra note 29; and Rosenne on this topic, in Developments supra note 36, at 257-258. 103 E.g by the introduction of the concept of jus cogens overriding other norms - cf. Erika de Wet, The International Constitutional Order, Inaugural Lecture, Universiteit van Amst erdam, Vossius Pers, 2005. take the form of substantive rules for particular treaties being deferred to ano ther level, ultimately to the treaty itself. Finally, it seems that the viability of a constitutional perspective is intricat ely linked with an element of centralization. Where previously treaties had to opera te in a horizontal, co-ordinated structure, also when multilateral and even law-making , th is is no longer the case. In many cases the treaty now operates in a centralized le gal environment. Often, this is formalized in an international organization, but it may also be the constitutionalized frame of reference (or frame of mind)103 of a fie ld of law, or a treaty regime such as in human rights. Arguably, in such a context it will be increasingly uncomplicated to distance ourselves from the treaty mechanism and concentrate on the treaty regime or, in the case of normative treaties, to let t he gap between form and function become less important.